Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Munaf sequel left undisturbed

Posted Tue, January 11th, 2011 7:00 pm by Lyle Denniston

After weighing the issue for more than three months, the D.C. Circuit Court on Tuesday turned aside a new plea for the full bench of that Court to reconsider a 2009 ruling that sharply limits the power of federal judges to keep control of Guantanamo Bay detainee cases. Over a vigorous dissent by three of its nine judges, the en banc Circuit Court refused a hearing on the decision in Kiyemba v. Obama, known informally as “Kiyemba II” – perhaps setting the stage for a new appeal to the Supreme Court.

It now appears that there could soon be nine cases awaiting the Supreme Court in the next few weeks; seven are already moving forward there. But among the more important of the new and newly arriving cases are those seeking to challenge “Kiyemba II.” (One of eight cases filed recently at the Court is likely to fade away, since the individual has been sent home to Algeria; the other seven remain pending.)

“Kiyemba II” is the April 2009 decision by the Circuit Court that broadly interpreted the Supreme Court’s 2008 decision in Munaf v. Geren to deny federal judges authority to block the transfer out of Guantanamo of any prisoner. A transfer could put the detainee beyond the court’s power of review. In Tuesday’s dissent in the Circuit Court, three judges protested that such transfers would violate the Supreme Court’s 2008 decision in Boumediene v. Bush, giving Guantanamo prisoners a constitutional right to challenge their captivity. (Boumediene and Munaf were decided the same day, but came out in markedly different ways.)

The Circuit Court dissenters in Abdah broadly canvassed the history of the habeas writ in English and American history, and asserted that the Supreme Court’s Boumediene decision gives detainees a right to be told in advance about potential transfers “that will take them beyond the reach of the writ of habeas corpus.”

That, the dissenters said, is part of “the fundamental procedural protections that characterized the Great Writ” early on and still. The Circuit Court’s reasoning in “Kiyemba II,” the dissenters said, “was fundamentally flawed,” partly because it “misread then misapplied” the Munaf precedent. The six Circuit judges who apparently did not vote for a hearing did not respond to the dissent by Circuit Judge Thomas B. Griffith, joined by Circuit Judges Judith W. Rogers and David S. Tatel.

Three Justices of the Supreme Court last summer indicated they had questions about the Circuit Court’s interpretation of Munaf, which did not directly involve anyone at Guantanamo. (Boumediene involved only Guantanamo prisoners.) It would take the votes of at least four Justices to hear a new detainee case.

The new Circuit Court order came in a series of 21 cases (the lead case is Abdah v. Obama, Circuit docket 05-5224). Lawyers involved in that case said they had not yet decided what step to attempt next. One option would be to ask the Circuit Court to issue a final ruling to promptly end its review of those 21 cases, thus allowing the lawyers to then seek Supreme Court review.

That exact procedural move is now being tried in another Guantanamo case, involving a Yemeni national, Tofiq Nasser Awad Al-Bihani — one of two brothers at Guantanamo. The other brother, Ghaler Nassar Al -Bihani, already has sought Supreme Court review (docket 10-7814; a government response is now due Feb, 2); his case is one of those pending on the Justices’ docket now.

Lawyers for Tofiq Al-Bihani and the Justice Department last week filed a joint motion asking the Circuit Court to summarily uphold a judge’s denial of Al-Bihani’s challenge to his detention. Al-Bihani contends that the government has no legal authority to hold him because, he argues, he did not engage in any direct armed conflict against U.S. forces; that is the issue he wants to take to the Supreme Court.

His lawyers thus joined with the Justice Department in asking the Circuit Court to rule against his appeal there, “in order to allow him to seek Supreme Court review of the [habeas denial] in the most efficient manner possible.” It would be futile, both he and the government agreed, for his appeal to go forward in the Circuit Court because prior Circuit Court precedent would work against him. Two of the precedents the motion cited are now being tested in cases already at the Supreme Court, including Al-Bihani’s brother’s petition. Yesterday, the Circuit Court suspended a briefing schedule in the Al-Bihani case until further order — presumably, until it acts on the motion to end the case.

The cases already at the Supreme Court are beginning to develop rapidly. The Court, according to its electronic docket, is scheduled to consider at its Conference on Friday the first of the cases — Al-Adahi v. Obama (docket 10-487). That case seeks to test a Circuit Court ruling that directs federal District Court judges to take a broader view of the government’s reasons for detaining an individual, enhancing the government’s chances of prevailing.

A Justice Department response was scheduled to be filed tomorrow (Wednesday) in another of the cases, and similar responses are due in four other cases either later this month or in early February. The Court, of course, has complete discretion whether to hear any of the cases.

The “Kiyemba II” decision involved the Circuit Court’s overturning of a series of orders by District Court judges ordering the government to give detainees and their lawyers at least 30 days’ notice before transferring a prisoner out of Guantanamo. Relying on the Munaf precedent, the Circuit Court told District judges not to “second-guess” the Executive Branch’s decisions on when and where transfers should be made. At that time, Judge Griffith dissented.

After that ruling in April 2009, the Circuit Court refused in July of that year to rehear the case en banc; the same three judges who dissented on Tuesday did so then, too, arguing for full bench rehearing. The case went on to the Supreme Court, which denied review last March 22. While there were no dissents, the denial of review came amid indications that the Court saw the case as only a continuation of a dispute that it had recently returned to the Circuit Court for further exploration.

It should be noted that, when the Justices denied review of “Kiyemba II,” Elena Kagan had participated in the case as U.S. Solicitor General. Thus, as a Justice on the Court now, she is likely to disqualify herself from any role in reviewing that Circuit Court decision.

Since the Justices denied review of that case in March, the Circuit Court has made repeated use of it as a precedent in rejecting a variety of Guantanamo detainees’ claims. Most of those later rulings are either being challenged now in new petitions, or will be shortly.

If there are only four votes to hear a new test of “Kiyemba II,” that would be enough to grant review, but it might portend the prospect of a 4-4 split, which would uphold the Circuit Court ruling, but without an opinion.

Lawyers for Guantanamo detainees, however, have seen some encouraging signs in the fact that three Justices have said they wanted to examine the meaning and scope of the Munaf precedent, and two others have indicated that “Kiyemba II” raised issues about the law of detention that the Supreme Court should resolve.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]